CHERUBS had a pro bono attorney for the personal restraining order I had to take out against Elizabeth at Breath of Hope in 2006 I believe. Long story, not going into that as that’s not what this post is about.

CHERUBS had 3 pro bono lawyers from 2 law firms helping us on the trademark and a few additional tossing us advice here and there. HUGE help! But 1 law firm doesn’t have the manpower to give us anymore and the other is about to take over a much bigger project for us.

So that leaves me to deal with the trademark issue legal stuff alone. And to be honest, I have no clue what I’m doing. The stress of having 1000’s of people depend on me and CHERUBS to protect Congenital Diaphragmatic Hernia Awareness is enormous. I don’t want to mess this up. I need help. If you know of a trademark attorney who will help us, please let me know. They can be in any state as this is a federal issue. Please help if you can – these babies deserve to have the best representation to protect their rights. I am not that person to do that job, I am not qualified and I will not post that I am a legal expert or I am so intelligent that I don’t need a lawyer. I am bound to make some mistakes doing this alone (well, not alone – our Board is a huge help!), but we cannot afford to make mistakes. Taking on a trademark is not a small thing at all. This trademark is a huge ordeal, one that has to be stopped.

So that leads me to another notice. I will be taking down the timeline for a while. I will not be posting about any legal issues. I will no longer be keeping you updated on Elizabeth’s attacks or false allegations, slander, filings against CHERUBS with various agencies, etc. If you want updates on the trademark, you can go through the petition site to see the updates at the USPTO. Why, you ask?

For the first 3 years all this was going on, we kept quiet about it. Ignoring it did not help matters, it only enabled her and made her bolder. It got worse, so much worse that the restraining order was filed.

Then we went public, because other CDH parents were now being attacked and Elizabeth was filing accusations to try to have CHERUBS shut down. That was 2 years ago. You all have been pretty updated since.

But now, I am stepping back on the legal stuff and handing it all over to our new 2 pro bono lawyers to deal with. Whatever they deem necessary to do to stop the attacks, they have our blessing. Any court proceedings, filings, government intervention, criminal charges, etc – they have our blessing. 5 years of this is enough. It’s time to deal with this all once and for all and let the CDH community have some peace. We can’t thank our new lawyers enough, they are angels to help the CDH community this way!!!

And we can get back to supporting families dealing with Congenital Diaphragmatic Hernia and stop dealing with all Elizabeth’s drama and attacks. Too many CDH parents were put under the impression that CHERUBS is only about drama and stopping Elizabeth. That couldn’t be farther from the truth…. our site is drama free, we offer dozens of free services, the most CDH information on the net and with over 2700 families we offer the most support! 🙂 We’ve been here for 14 years with only one goal – helping families affected by CDH.

Now, we still have the trademark issue to deal with!!! I am still working on that video and we will release it this week. At the least, it will raise awareness! But we still need a lawyer! If you know a lawyer or you really want to help and just call lawyers and ask them to help us…. we would appreciate it so much!!!

On February 24, 2009, the following letter was sent to the Board Members of Breath of Hope, Incorporated. It is our formal attempt to end this trademark issue peacefully and to request that their organization do what is best for all families affected by Congenital Diaphragmatic Hernia.

This is our effort to resolve this particular issue and end this trial and to save the entire CDH Community 2 years of USPTO trial dates and to use our time and resources to better help CDH families.

The trademark trial is continuing, and will go forward, unless Breath of Hope, Inc. decides to resolve this issue.

What happens next is up to Breath of Hope, Inc and it’s Board Members.

——————————————

Ms. Doyle-Propst,

This communication is only for mediation purposes of attempting to resolve the “Congenital Diaphragmatic Hernia Awareness” trademark issue. For the sake of having a peaceful dialog, we will keep this letter to the point and not comment on any other issues. We hope that you can do the same and help us to find a realistic and positive solution to this trademark issue.

The trademark on “Congenital Diaphragmatic Hernia Awareness” has been extremely detrimental to the entire CDH community. The “pinkwashing” excuse has failed to give any valid reasoning of why Breath of Hope, Inc. has filed the trademark on “Congenital Diaphragmatic Hernia Awareness”. The idea that anyone could own “Congenital Diaphragmatic Hernia Awareness” has deeply angered the majority of the CDH community, as it has hindered Congenital Diaphragmatic Hernia Awareness itself. Nothing good has, or could, come from this. It is our sincere hope that you will do what is best for the entire CDH community and remove this trademark.

CHERUBS, and several other CDH organizations, do not feel that we should have to ask permission from you or Breath of Hope, Inc. to use a common term that we all use daily. To ask us, CDH families and researchers, to do so can and will only hinder progress of spreading Congenital Diaphragmatic Hernia Awareness. If you have not already read the comments at http://www.ipetitions.com/petition/cdhawareness we would like to ask you to do so. You can also read the comments at http://www.facebook.com/group.php?gid=56377210497.

Over 5700 CDH families, survivors, friends, pediatric surgeons, nurses and others have asked to stop this trademark – including many members of Breath of Hope, Inc (with some being past board members). It is from this group that we will pull witnesses that will tell the United States Patent and Trademark Office that “Congenital Diaphragmatic Hernia Awareness” is a common term.

On behalf of myself, CHERUBS and 1000’s of CDH families and medical staff, I would like to formally ask you to drop the trademark on “Congenital Diaphragmatic Hernia Awareness”. We all hope to work together to reach an agreement and better the CDH community.

If you agree to do so, we will agree to refrain from filing a Petition to Cancel on the “Congenital Diaphragmatic Hernia Awareness Day” trademark, even though we believe that every CDH family should have the right to participate without asking permission, being threatened or forced to give funds to Breath of Hope, Inc. We are all aware of your desire to own and control “Congenital Diaphragmatic Hernia Awareness Day” from other CDH organizations and, as an olive branch, are willing to allow the trademark for the day in lieu of the trademark on “Congenital Diaphragmatic Hernia Awareness” itself.

As always, all CHERUBS wants is for CDH families to have the support and information that they need, and to encourage Congenital Diaphragmatic Hernia awareness and research. We understand that this is the goal of all CDH organizations. We ask that you will reconsider this trademark and focus on doing what’s right for families affected by Congenital Diaphragmatic Hernia, and furthering the support that Breath of Hope, Inc gives. It is not our wish to hurt you or Breath of Hope, Inc. We simply have asked for this trademark to be canceled and the term “Congenital Diaphragmatic Hernia Awareness” returned to the community who has been affected by Congenital Diaphragmatic Hernia.

Sincerely,

Dawn M. Williamson

President & Founder

CHERUBS – The Association of Congenital Diaphragmatic Hernia Research, Awareness and Support

Just a few of the “I Own Congenital Diaphragmatic Hernia Awareness” – videos by families, friends and medical care providers fighting the trademark on “Congenital Diaphragmatic Hernia Awareness” by Breath of Hope, Inc. http://www.ipetitions.com/petition/cdhawareness

To participate e-mail your video file to membership@cherubs-cdh.org with your cherub’s name and info and the name(s) of those in the video. The script is “I (or we) Own Congenital Diaphragmatic Hernia Awareness”

Several people have forwarded us very slanderous and false e-mails written to them to intimidate and threaten them into not disagreeing with the CDH Awareness Trademark. One of the false statements that Elizabeth Doyle-Propst likes to state is that she is “unable to stop the court proceedings” to cancel the “Congenital Diaphragmatic Hernia Awareness” Trademark. It is now being stated that “CHERUBS started it” and “CHERUBS is keeping this trademark on record” because Elizabeth is “stuck”. As humorous as this is, it’s a blatant attempt to avoid taking any responsibility for filing for the trademark, not removing and wasting Breath of Hope, Inc donations to fight to keep it. Fighting to keep something that only 1 person wants.

Because Elizabeth does not have legal counsel and is not known for her researching expertise, we thought that maybe she might have overlooked the volumes of text on the TTAB site that say that all Breath of Hope, Inc has to do is write a letter asking to drop the trademark and submit to the USPTO office. That’s it. She’s definitely great at writing letters, especially ones filled with (inaccurate) legalese so this should take about 5 minutes to do.

5 minutes to listen to the families and researchers who have requested the end to the Congenital Diaphragmatic Hernia Awareness Trademark. 5 minutes to listen to 1000’s of people. 5 minutes to listen to her own members.

If Elizabeth had not responded to the Petition to Cancel, then the trademark would’ve been removed and all this would’ve been resolved. She CHOSE to respond and fight for her trademark and continue this drama and continue to hurt the CDH community. She is CHOSING to continue this now instead of dropping it.

For Elizabeth’s information, our lawyer sent us the following links that we would like to pass on to her:

602 Withdrawal by Opposition or Cancellation Defendant602.01 Withdrawal by Applicant

37 CFR § 2.68 Express abandonment (withdrawal) of application. An application may be expressly abandoned by filing in the Patent and Trademark Office a written statement of abandonment or withdrawal of the application signed by the applicant, or the attorney or other person representing the applicant. Except as provided in §2.135, the fact that an application has been expressly abandoned shall not, in any proceeding in the Patent and Trademark Office, affect any rights that the applicant may have in the mark which is the subject of the abandoned application.

37 CFR § 2.135 Abandonment of application or mark. After the commencement of an opposition, concurrent use, or interference proceeding, if the applicant files a written abandonment of the application or of the mark without the written consent of every adverse party to the proceeding, judgment shall be entered against the applicant. The written consent of an adverse party may be signed by the adverse party or by the adverse party’s attorney or other authorized representative.

37 CFR § 7.30 Effect of cancellation or expiration of international registration. When the International Bureau notifies the Office of the cancellation or expiration of an international registration, in whole or in part, the Office shall cancel, in whole or in part, the corresponding pending or registered extension of protection to the United States. The date of cancellation of an extension of protection or relevant part shall be the date of cancellation or expiration of the corresponding international registration or relevant part.

Chapter 600WITHDRAWAL; SETTLEMENT

An applicant may expressly abandon its application by filing in the Office a written statement of abandonment or withdrawal of the application, signed by the applicant or the applicant’s attorney or other authorized representative.7

However, after the commencement of an opposition proceeding, if the applicant files a written abandonment of its subject application or mark without the written consent of every adverse party to the proceeding, judgment will be entered against the applicant.8 The written consent of an adverse party may be signed by the adverse party itself, or by the adverse party’s attorney or other authorized representative.9

For information concerning the effect of a 37 CFR § 2.135 judgment against applicant, see cases cited in the note below.10
7 37

7 37 CFR § 2.68.

8 37 CFR § 2.135. See Fleming Companies Inc. v. Thriftway Inc., 21 USPQ2d 1451, 1456 (TTAB 1991), aff’d, 26 USPQ2d 1551 (S.D.Ohio 1992) (where excepted user abandoned application in concurrent use proceeding, judgment precluded applicant from obtaining any registration at all, although it may remain in proceeding as defaulting user); Goodway Corp. v. International Marketing Group Inc., 15 USPQ2d 1749, 1749 (TTAB 1990); Grinnell Corp. v. Grinnell Concrete Pavingstones Inc., 14 USPQ2d 2065, 2067 (TTAB 1990) (consent required for abandonment without prejudice regardless of motivation for abandonment, i.e.. a concession by applicant that it is not owner of mark and that judgment would be unfair to real owner, a nonparty to the case); and In re First National Bank of Boston, 199 USPQ 296, 301 (TTAB 1978) (where abandonment of application and notice of opposition were filed on same day, consent was not required because there was no application to oppose).

9 See 37 CFR § 2.135.

10 Miller Brewing Co. v. Coy International Corp., 230 USPQ 675, 678 (TTAB 1986) (judgment in first opposition, as result of abandonment of application without consent, operates as claim preclusion in subsequent opposition so as to bar applicant’s subsequent application for an insignificantly modified mark); United States Olympic Committee v. Bata Shoe Co., 225 USPQ 340, 342 (TTAB 1984) (abandonment of application without consent in previous opposition does not operate as collateral estoppel or claim preclusion in subsequent cancellation proceeding between same parties since the two cases involve two distinct marks, and does not operate as issue preclusion because no issues were actually litigated in the prior opposition); Bass Anglers Sportsman Society of America, Inc. v. Bass Pro Lures, Inc., 200 USPQ 819, 822 (TTAB 1978) (judgment against applicant in prior opposition due to abandonment of application without consent operated as collateral estoppel in subsequent opposition involving same marks and same parties in opposite positions); and In re Communications Technology Corp., 182 USPQ 695, 696 (TTAB 1974) (judgment against applicant in prior opposition between applicant and owner of cited registration is not conclusive of likelihood of confusion and does not operate as a estoppel in subsequent application for a distinctly different mark).

– The March of Dimes didn’t and wouldn’t trademark “Prematurity Awareness” because it would be unethical and millions of parents of premature babies would be in an uproar.

– “Congenital Diaphragmatic Hernia Awareness” is the ONLY trademark in the entire United States of America solely filed on awareness of a health issue. Other organizations have filed trademarks on specific events or fundraisers – March of Dimes’ “Prematurity Awareness DAY” – but not for all awareness of a health issue.

– No one cares if Breath of Hope trademarks “Congenital Diaphragmatic Hernia Awareness Day”. No one. Really. We’ve said this all along. Breath of Hope made the decision to trademark “Congenital Diaphragmatic Hernia Awareness” instead. Then did the other one as well.

– 100’s of CDH families are against this trademark. Including members of Breath of Hope, Inc.

– Almost 100 pediatric surgeons and nurses have signed the petition against the “Congenital Diaphragmatic Hernia Awareness” trademark.

– When you file a trademark on something as important as “Congenital Diaphragmatic Hernia Awareness” and tick off 1000’s of people and threaten CDH families and organizations, I wouldn’t say that “CHERUBS started it”.

– Breath of Hope, Inc and Elizabeth Doyle-Propst are now saying that all CDH organizations, families and researchers must ask their permission before we use the phrase “Congenital Diaphragmatic Hernia Awareness” on any goods and services that Breath of Hope offers. That means that any brochures, newsletter, fundraising items, shirts, events, etc – would have to get “permission” from Elizabeth Doyle-Propst and no doubt give Breath of Hope, Inc the proceeds. Even though CHERUBS was offering these services 8 years before Breath of Hope existed. Several CDH organizations have been around before BoH. This includes the CDH Researchers and CDH Clinics as well.

– This includes cafepress and zazzle products – to which they have already filed complaints. CHERUBS has been on cafepress for 7 years. 3 years before BoH even existed.

– If you start a new goods or service that Breath of Hope currently does not offer – there is no protection that they will not copy your idea and then claim trademark over it. They are known to imitate the work of others – the entire structure and even original name and all the original members of Breath of Hope, Inc came from CHERUBS.

– The trademark on “Congenital Diaphragmatic Hernia Awareness” is on the supplemental registry, not the main registry. Which makes it ILLEGAL for Breath of Hope, Inc. to threaten anyone who uses the phrase.

– Why did we file the Petition to Cancel? To get this trademark removed and stop this drama and the threats from Breath of Hope, Inc and make sure that it NEVER makes it on the regular registry.

– This trademark on “Congenital Diaphragmatic Hernia Awareness” is filed by 1 person, Elizabeth Doyle-Propst. Where is the rest of BoH’s Board in all this? It is quite obvious that the Board of Directors at Breath of Hope, Inc. is in name only and either does not know what their “CEO” is doing or they do not care. Or they are the most gullible and naive people to ever walk the face of the earth after being given 100’s of pieces of evidence, including court documents, a petition with over 5500 signatures including many of their members and ex-Board of Directors and a voice recording from a court proceeding.

– Elizabeth Doyle-Propst has no medical or legal training. She is not a doctor. She is not a researcher. She is not a lawyer. She has little personal experience with CDH (no disrespect to the memory of her daughter – just stating facts here). No experience with taking full care of a CDH child. Her CDH “research” is compliments of Google. She cannot get along with other CDH parents or groups and has a long, long history of conflicts. This is not a person who should be entrusted with owning “Congenital Diaphragmatic Hernia Awareness”. Who decided she should file for this trademark and be in charge of CDH Awareness? She did.

– Elizabeth has said that we can all say “CDH Awareness” without fear…. isn’t that nice? But how is it raising awareness if no one knows what CDH stands for?!

– The “Pinkwashing” excuse is ridiculous and the only ones who think it holds any water is the Breath of Hope, Inc Board of Directors. This excuse defies all common sense and the statistics are not even valid. Does BoH not realize that CDH parents know this?

So what is behind the “Congenital Diaphragmatic Hernia Awareness” trademark? One woman’s need for control, revenge and greed. Those are the only reasons that seem remotely plausible.

There is not ounce of care and concern for CDH families behind the “Congenital Diaphragmatic Hernia Awareness” trademark.

CDH families are very intelligent people. It’s extremely disrespectful to the entire CDH community to file the trademark. Then attack CDH families and organizations. Then ignore their wishes. Then ignore the wishes of the researchers. Then try to excuse this behavior with ridiculous dribble.

We know what’s right for our children and the memories of those cherubs who didn’t survive. We know what is ethical and what is self-absorbed.

CDH families are very intelligent people. We know what is right and wrong. This is wrong.

Once again, for the hundredth time…. the entire CDH community – including now 9 CDH organizations and over 5500 people – including over 100 doctors and nurses from ALL the country’s CDH clinics and fetal centers – including 100’s of CDH families – including Breath of Hope members – including former Breath of Hope Directors….. as we form 1 huge, global collective sigh…..

So I’m sad to report that the CDH community now has a year of legal paperwork and proceedings to fight this trademark. Time and money better spent on helping CDH families. But CHERUBS and the other 8 organizations who signed the petition have an obligation to protect CDH families their right to raise awareness.

I’m not going to comment on Elizabeth’s filing except that it’s untrue… as will be proven by the documents and affadavits that we will submit but most of you can see how untrue it is just by reading it. It’s pretty brazenly untrue.